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IN THE HIGH COURT OF JAMMU AND KASHMIR
G.D. Sharma, J.
B.M. Chopra & Anr. - Appellant
Versus
State Of J&K & Ors. - Respondent
OWP No. 390/1995
Decided On : 04 July, 1996
J&K AGRARIAN REFORMS ACT - SECTION 28-A, 32, 21, 18 - LEASE OF AGRICULTURAL LAND - CANCELLATION OF MUTATION - JURISDICTION OF DIVISIONAL COMMISSIONER - REVIEW OF MUTATION ORDERS - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
Petitioner Trust leased land from a lessor who had purchased it from a tenant conferred proprietary rights under Section 8 of the J&K Agrarian Reforms Act. The Divisional Commissioner issued a communication directing the cancellation of the mutation of the lease, citing that the land could not be leased under Section 28-A of the Act. The Trust challenged this communication and the subsequent order of the Deputy Commissioner, arguing that the authorities lacked jurisdiction and violated principles of natural justice.
Finding of the Court:
The Court held that the Divisional Commissioner's communication and the Deputy Commissioner's order were illegal and arbitrary, as they were issued without any express authority of law and violated the principles of natural justice. The Court further held that the land in question was agricultural land and could not be leased out in contravention of the provisions of the Act.
Issues: 1. Whether the Divisional Commissioner and Deputy Commissioner had the jurisdiction to cancel the mutation of the lease and order the land to be escheated to the State. 2. Whether the lease of the agricultural land was valid under the provisions of the J&K Agrarian Reforms Act.
Ratio Decidendi: 1. The Court held that the Divisional Commissioner and Deputy Commissioner did not have the jurisdiction to cancel the mutation of the lease and order the land to be escheated to the State, as they were not the recognized authorities under the Act to issue such directions. 2. The Court held that the lease of the agricultural land was void and invalid, as it was made in contravention of the provisions of Section 28-A of the Act, which prohibits the lease of agricultural land.
Final Decision: The Court quashed the Divisional Commissioner's communication and the Deputy Commissioner's order, but allowed the respondents to conduct an inquiry into whether the land was leased out in contravention of the provisions of the Act.
2. In their objections, the respondents pleaded that no fundamental, legal or statutory right of the petitioners was involved, and as such, the writ petition was not maintainable. It is also pleaded that in the presence of disabling S. 28-A the land in question could not be given on lease and respondent No. 4 was prohibited from affecting any transfer. That the lessor had purchased the land from the tenant on whom the proprietary rights under S. 8 of the Act were conferred. There was legal inhibition for transferring any such land but the prospective owner affected the transfer against the mandates of law. In view of such void transfer, no right, title or interest could be transferred in favour of the lessor, and consequently, he could not by executing the lease deeds transfer any right or interest. The alienation of the land has been effected by all the concerned parties in violation of the express provisions of law and the land has to escheat to the State. That respondent No. 4 had exceeded his authority and acted without any jurisdiction. The land in question is not Banjar Jadeed and Gair Mumkin, but Warhal Awal and Gair Mumkin Aar Bana. It thus falls within the definition of agricultural land as defined under S. 2 of the J. & K. Agrarian Reforms Act, 1976 (hereinafter to be referred to as Act), and could not be made the subject matter of any transfer. It is lastly pleaded that the order for the cancellation of the mutation was validly passed.
3. The case came up for consideration of its admission, but the learned counsel appearing for the parties agreed that it can be decided finally on the pattern of the order passed in O.W.P. No. 481/1994 titled: Babu Ram Dubey and another v. State.
4. On the above-said statement, the following order is passed:
The order cancelling mutation No. 1224 (attested by respondent No. 4) is quashed but the respondents are free to get the inquiry conducted as to whether the land in question was leased out in contravention of the provisions of the Act.
5. Before parting with this case, it is s
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